United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young United States Magistrate Judge.
Norris Pittman, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. §
2254 ("§ 2254 Petition," ECF No. 5)
challenging his 2014 convictions in the Circuit Court of the
County of Henrico, Virginia ("Circuit Court").
Pittman argues that he is entitled to relief on the following
Claim One: (a) "The trial court erred for not
instructing [the] jury on the elements of first-degree
murder." (§ 2254 Pet. 5.) (b) "[The] evidence
presented at trial was insufficient to establish first-degree
Claim Two: "The trial court erred by not disregarding
the testimony of Shamika Gee, [the] Commonwealth's key
witness, who has admitted under oath that she ha[s]
lied." (Id. at 7.)
Claim Three: "[Pittman's] Fifth and Fourteenth
Amendment rights were violated because the Commonwealth
knowingly used perjured testimony by Shamika Gee."
(Id. at 8.)
moves to dismiss on the grounds that Pittman's claims are
procedurally defaulted and barred from review here and, in
the alternative, that they lack merit. Pittman filed an
"Affidavit," responding to Respondent's Motion
to Dismiss ("Response," ECF No. 15). For the
reasons set forth below, the Motion to Dismiss (ECF No. 11)
will be GRANTED. Claims One (a) and Three will be DISMISSED
as procedurally defaulted, and the remaining claims will be
DISMISSED for lack of merit.
4, 2014, a jury convicted Pittman of one count of
first-degree murder and one count of use of a firearm in the
commission of a felony. See Commonwealth v. Pittman,
Nos. CR13-3402, CR13-3403, at 1-2 (Va. Cir. Ct. June 12,
2014). The Circuit Court sentenced Pittman to life in prison
for the first-degree murder conviction plus three years in
prison for the use of a firearm in the commission of a felony
conviction. Commonwealth v. Pittman, Nos. CR13-3402,
CR13-3403, at 1 (Va. Cir. Ct. Sept. 16, 2014).
proceeding with counsel, appealed, raising the following
assignment of error: "The court erred in finding the
evidence sufficient to prove that the defendant committed
murder in the first degree or any degree of homicide due to
the lack of proof of premeditation, the circumstantial nature
of the evidence, and the questionable credibility of the
witnesses." Petition for Appeal 2, Commonwealth v.
Pittman, No. 1761-14-2 (Va. Ct. App. filed Jan. 21,
2015) (emphasis omitted). On May 20, 2015, the Court of
Appeals of Virginia denied the petition for appeal.
Pittman v. Commonwealth, No. 1761-14-2, at 1 (Va.
Ct. App. May 20, 2015). A three-judge panel also denied the
petition for appeal. Pittman v. Commonwealth, No.
1761-14-2 (Va.Ct. App. Sept. 22, 2015).
6, 2016, the Supreme Court of Virginia refused the petition
for appeal, but remanded the case to the Circuit Court to
address "a discrepancy" regarding whether Pittman
was convicted and sentenced for use of a firearm in the
commission of a felony, first offense, or for use of a
firearm in the commission of a felony, second or subsequent
offense. Pittman v. Commonwealth, No. 151595, at 1
(Va. May 6, 2016). The Supreme Court of Virginia described
the discrepancy as follows: "The sentencing order
recited that appellant was found guilty of 'use of a
firearm in the commission of a felony, second or subsequent
offense;'" however, "[a]ppellant was not
arraigned on a second or subsequent offense for the firearm
charge; nor was the jury instructed on a second or subsequent
offense." Id. On June 2, 2016, the Circuit
Court entered a Corrected Sentencing Order, clarifying that
Pittman was convicted and sentenced to three years of
incarceration for one count of use of a firearm in the
commission of a felony, first offense, and to life in prison
for one count of first-degree murder. Commonwealth v.
Pittman, Nos. CR13-3402, CR13-3403, at 1 (Va. Cir. Ct.
June 2, 2016).
18, 2017, Pittman filed a petition for a writ of habeas
corpus in the Circuit Court, raising the same claims that he
raises in his instant § 2254 Petition. See
Petition for Writ of Habeas Corpus 1, Pittman v.
Commonwealth, No. CL17-1474 (Va. Cir. Ct. filed May 18,
2017); Memorandum of Law in Support of Petition for Writ of
Habeas Corpus 6, Pittman, No. CL17-1474. On July 31,
2017, the Circuit Court dismissed Pittman's petition,
finding that he defaulted his claims under Slayton v.
Parrigan, 205 S.E.2d 680, 682 (Va. 1974), and Henry
v. Warden, 576 S.E.2d 495, 496 (2003), and that his
challenge to the sufficiency of the evidence was not a ground
for state habeas relief. Pittman v. Commonwealth,
No. CL17-1474, at 1-2 (Va. Cir. Ct. July 31, 2017). Pittman
appealed to the Supreme Court of Virginia. Petition for
Appeal, Pittman v. Commonwealth, No. 171429 (Va.
filed Oct. 30, 2017). On June 29, 2018, the Supreme Court of
Virginia refused the petition for appeal. Pittman v.
Commonwealth, No. 171429 (Va. June 29, 2018).
Thereafter, Pittman filed the instant § 2254 Petition in
this Court. (§ 2254 Pet. 1.)
EXHAUSTION AND PROCEDURAL DEFAULT
a state prisoner can bring a § 2254 petition in federal
district court, the prisoner must first have "exhausted
the remedies available in the courts of the State." 28
U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted
in considerations of federal-state comity," and in
Congressional determination via federal habeas laws
"that exhaustion of adequate state remedies will
'best serve the policies of federalism.'"
Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va.
2005) (some internal quotation marks omitted) (quoting
Preiser v. Rodriguez, 411 U.S. 475, 491-92 &
n.10 (1973)). The purpose of exhaustion is "to give the
State an initial opportunity to pass upon and correct alleged
violations of its prisoners' federal rights."
Picard v. Connor, 404 U.S. 270, 275 (1971) (internal
quotation marks omitted). Exhaustion has two aspects. First,
a petitioner must utilize all available state remedies before
the petitioner can apply for federal habeas relief. See O
'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999).
As to whether a petitioner has used all available state
remedies, the statute notes that a habeas petitioner
"shall not be deemed to have exhausted the remedies
available in the courts of the State ... if he has the right
under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. §
second aspect of exhaustion requires a petitioner to have
offered the state courts an adequate "opportunity"
to address the constitutional claims advanced on federal
habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(internal quotation marks omitted) (quoting Duncan v.
Henry, 513 U.S. 364, 365-66 (1995)). "To provide
the State with the necessary 'opportunity,' the
prisoner must 'fairly present' his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim." Id. Fair
presentation demands that a petitioner present "both the
operative facts and the controlling legal principles" to
the state court. Longworth v. Ozmint, 377 F.3d 437,
448 (4th Cir. 2004) (internal quotation marks omitted)
(quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th
Cir. 2000)). The burden of proving that a claim has been
exhausted in accordance with a "state's chosen
procedural scheme" lies with the petitioner. Mallory
v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).
distinct but related limit on the scope of federal habeas
review is the doctrine of procedural default."
Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
This doctrine provides that "[i]f a state court clearly
and expressly bases its dismissal of a habeas
petitioner's claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground
for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim." Id.
(citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). A federal habeas petitioner also procedurally
defaults claims when he or she "fails to exhaust
available state remedies and 'the court to which the
petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims
procedurally barred.'" Id. (quoting
Coleman, 501 U.S. at 735 n.l). The burden of
pleading and proving that a claim is procedurally defaulted
rests with the state. Jones v. Sussex I State
Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citations
omitted). Absent a showing of "cause for the default and
actual prejudice as a result of the alleged violation of
federal law," or a showing that "failure to
consider the claims will result in a fundamental miscarriage
of justice," this Court cannot review the merits of a
defaulted claim. Coleman, 501 U.S. at 750; see
Harris v. Reed, 489 U.S. 255, 262 (1989).
Pittman's § 2254 Petition, he raises the same three
claims that he presented to the Circuit Court in his state
habeas petition. (§ 2254 Pet. 5, 7-8); Memorandum of Law
in Support of Petition for Writ of Habeas Corpus 6,
Pittman v. Commonwealth, No. CL17-1474 (Va. Cir. Ct.
filed May 18, 2017). The Circuit Court found that
Pittman's state habeas claims, that are presented in the
instant § 2254 Petition as Claim One (a) and Claim
Three, were procedurally defaulted pursuant to the rule in
Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974),
because Pittman could have raised, but failed to raise, these
claims at trial and on direct appeal. Pittman v.
Commonwealth, No. CL17-1474, at 2 (Va. Cir. Ct. July 31,
2017). Slayton constitutes an adequate and
independent state procedural rule when so applied. See
Mu`Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997).
Pittman fails to demonstrate any cause and prejudice for his
default or a fundamental miscarriage of justice. Thus, Claim
One (a) and Claim Three are defaulted and barred from review
here, and they will be DISMISSED.
APPLICABLE CONSTRAINTS ...